Local and state advocacy groups want a judge to strike down a Tennessee law passed this year that restricts how the court system determines a defendant's possible bail.
Just City, a criminal justice reform nonprofit, and the American Civil Liberties Union of Tennessee recently filed a federal lawsuit that argues the new regulation violates constitutional protections of due process.
The law went into effect in May and does not allow a judicial commissioner or judge to take into account an ability to pay when calculating bail for someone pre-trial.
Consideration of ability to pay was one part of a sweeping bail reform package that Shelby County officials adopted in 2022 under the threat of a similar lawsuit.
Josh Spickler, the head of Just City, says overturning the reform measure can lead to arbitrary bail amounts and result in discriminatory wealth-based detention.
“This law that prohibits judges from considering ability to pay is the only one of its kind in the country,” Spickler says. “Every other state – if they don’t require the judge to consider ability to pay, they certainly don’t prohibit it.”
Several high-profile, violent crimes committed by people out on bail or bond over the past year generated support for the law in the Republican dominated state legislature.
Republican State Senator Brent Taylor, who sponsored the legislation, argued on the Senate floor that bail amounts should be set “appropriately high enough” to increase the likelihood that individuals return to court.
“What we have going on in our home county is you have judges that are setting bail based on how much money a defendant has in their pocket,” he said. “That defeats the purpose of a cash bail when they’ve already determined that this defendant is not appropriate to release them on their own recognizance.”
Spickler pushes back and says the Shelby County judicial commissioners have not been making determinations based on the cash a defendant has on hand.
“We can use unaffordable bail all day, everyday so long as it’s the least restrictive way to get someone back to court and protect the community,” Spickler says. “That’s what the judges and the judicial commissioners are doing, and they do it best when they have more information, not less.”
Local Judge Bill Anderson, who previously supervised judicial commissioners in charge of bail hearings, told media outlets last week that he also believes the new state law is unconstitutional.
Attorney General Jonathan Skrmetti’s office did not reply to a request for comment.
